State v. Delong

[Cite as State v. Delong, 2016-Ohio-1412.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO :
Plaintiff-Appellee, : Case No. 15CA3482
v. : DECISION AND
JUDGMENT ENTRY
REGINA K. DELONG, :
Defendant-Appellant. : RELEASED: 03/30/2016
APPEARANCES:
Timothy Young, Ohio Public Defender, and Eric M. Hedrick, Assistant Ohio Public Defender,
Columbus, Ohio, for appellant.
Sherri K. Rutherford, Chillicothe Law Director and Michele R. Rout, Assistant Law Director,
Chillicothe, Ohio, for appellee.
Piper, J.
{¶ 1} Defendant-appellant, Regina K. Delong (“Delong”) appeals her convictions and
sentence in the Chillicothe Municipal Court after pleading no contest to driving under an OVI
suspension and operating a vehicle with an invalid license plate.
{¶ 2} On appeal, Delong presents one assignment of error, alleging that her convictions
should be reversed because the state violated her right to a speedy-trial when it failed to bring her
to trial within 90 days. The state argues that it complied with the applicable speedy-trial
timeframe.
{¶ 3} We find that the state brought Delong to trial within the applicable speedy-trial
timeframe, and therefore affirm Delong’s convictions and sentence.
I. Facts and Procedural Posture
Ross App. No. 15CA3482 2
{¶ 4} Delong was arrested and charged with several offenses, including receiving stolen
property, a fifth degree felony, driving under an OVI suspension, a first degree misdemeanor,
having illegal plates, a fourth degree misdemeanor, and four other minor misdemeanors. Delong
was arraigned on the misdemeanor charges and waived the preliminary hearing for the felony
charge. During the arraignment, the state and Delong agreed that all of the charges arose out of
the same act or transaction. Due to the felony receiving stolen property charge, the trial court
bound over all charges to the Ross County Court of Common Pleas.
{¶ 5} After the case was transferred to the common pleas court, the state presented its
case against Delong to the Ross County Grand Jury. The grand jury chose not to indict Delong
on the felony charge of receiving stolen property. Instead, the grand jury returned the indictment
on only the two misdemeanor charges of driving under an OVI suspension and having illegal
plates. Delong, now charged with two misdemeanor offenses, had her case returned to the
Chillicothe Municipal Court for further proceedings.
{¶ 6} Delong was arraigned on the two misdemeanor charges, and filed a demand for
discovery on October 7, 2014. The record indicates that the state provided discovery; and Delong
filed a response to the state’s request for reciprocal discovery on October 30, 2014. On
December 9, 2014, Delong filed a motion to discharge, arguing that the state failed to bring her
to trial within 90 days. The trial court denied Delong’s motion, finding the 90 days did not begin
to run from the date of her arrest, but rather, began to run on the day that Delong was served with
a summons on the grand jury’s indictment, September 24, 2014. As 90 days had not yet passed
from that date, the trial court found that Delong’s speedy-trial rights had not been violated.
{¶ 7} After her motion to dismiss was denied, Delong pled no contest to the two
misdemeanor charges. The trial court found Delong guilty, and sentenced her to time already
Ross App. No. 15CA3482 3
served, one year of community control, and a fine of $300. The trial court also suspended
Delong’s driver’s license for one year. Delong now appeals the trial court’s decision to deny her
motion to dismiss.
II. Assignment of Error
{¶ 8} On appeal, Delong asserts the following assignment of error for our review:
The trial court erred when it denied Ms. Delong’s motion to
discharge for violating her speedy-trial rights pursuant to R.C.
2945.73(B). * * *
III. Standard of Review for Motions to Dismiss for a Speedy-Trial Violation
{¶ 9} Appellate review of a trial court’s decision on a motion to dismiss for a speedy-
trial violation involves a mixed question of law and fact. State v. James, 4th Dist. Ross No.
13CA3393, 2014-Ohio-1702. We will defer to a trial court’s factual findings if some competent
and credible evidence supports them, but we review de novo the trial court’s application of the
law to those facts. State v. Carr, 4th Dist. Ross No. 12CA3358, 2013-Ohio-5312, ¶ 12. Also,
“[t]he interpretation of a statute * * * is a question of law, which we review de novo.” State v.
Frey, 166 Ohio App.3d 819, 2006-Ohio-2452, 853 N.E.2d 684, ¶ 9 (4th Dist.).
IV. Law and Analysis
{¶ 10} In her sole assignment of error, Delong argues that she was entitled to discharge
pursuant to R.C. 2945.73(B) because she was not brought to trial within the required speedy-trial
time limit of 90 days for first degree misdemeanor charges.
{¶ 11} The Sixth Amendment to the United States Constitution and Section 10, Article I
of the Ohio Constitution guarantee a criminal defendant the right to a speedy trial. The Ohio
Legislature incorporated this guarantee within R.C. 2945.71, which provides specific time limits
Ross App. No. 15CA3482 4
within which a defendant must be brought to trial. According to R.C. 2945.71(B)(2), a defendant
charged with a first or second degree misdemeanor must be brought to trial within 90 days after
the arrest or service of summons. R.C. 2945.71(C)(2) requires a defendant charged with a felony
to be brought to trial within 270 days after arrest.
{¶ 12} According to Crim.R. 5(B), “except upon good cause shown, any misdemeanor,
other than a minor misdemeanor, arising from the same act or transaction involving a felony
shall be bound over or transferred with the felony case.” R.C. 2945.71(D) further provides that
when one or more charges of different degrees are brought that arise out of the same act or
transaction, the speedy-trial timeframe will be determined by the highest degree of offense
charged. As such, the speedy-trial timeframe applied to misdemeanor cases bound over with a
felony charge is 270 days.
{¶ 13} Ohio law is clear that “when an original charge is later reduced to a lesser offense
based upon the same conduct, the speedy trial limitations of R.C. 2945.71 begin to run anew on
the date the defendant is served with the charge on the lesser offense.” State v. Smith, 4th Dist.
Athens No. 99CA31, 2000 WL 41723, *2 (Jan. 12, 2000). Given this well-settled law in Ohio,
and applying the same rationale to the case at bar, we find that Delong’s speedy-trial timeframe
for purposes of the misdemeanor charge began to run anew once the grand jury returned a no
true bill on the felony charge.
{¶ 14} It is undisputed from the record that the misdemeanor and felony charges all arose
from the same act or transaction, and were pending simultaneously. Delong argues that once the
felony charge was not indicted, the highest remaining offense was a misdemeanor, thus requiring
a 90-day speedy-trial timeframe. However, when the grand jury decided to return the indictment
Ross App. No. 15CA3482 5
on only the misdemeanor charges, the speedy-trial date began to run anew similar to as if the
charge had been reduced to a lesser-included offense.
{¶ 15} The record clearly indicates that both parties initially proceeded as if the speedy-
trial timeframe was determined by the felony charge. The grand jury significantly changed the
state’s charges, which also changed the way in which the speedy-trial calculation should take
place. When there exists both a charged felony and misdemeanor, “[t]o hold that [a] defendant
must be tried within a time that remains from the lesser misdemeanor period would place an
unduly severe burden on the prosecution, and would require the prosecution to treat all persons
suspected of conduct which could constitute either a felony or a misdemeanor as though they
will be tried for the misdemeanor.” State v. Phillips, 19 Ohio App.3d 85, 86-87, 482 N.E.2d 1337(10th Dist.1984). While Phillips was specific to new misdemeanor charges brought after a felony
charge had been dismissed, the same reasoning is applicable to the case at bar.
{¶ 16} A retroactive application of the 90-day period of time where the timeframe for
trial has already expired does not create an even playing field for the state. The state had no way
of knowing that the grand jury would not indict Delong on the felony charge, and therefore,
could not have anticipated a need to sever the misdemeanor charges and bring Delong to trial
within 90 days from her arrest. The Ohio Legislature anticipated that the state could bring
differing degrees of charges against a defendant when those charges arise out of the same
occurrence or transaction. As referenced above, both Crim.R. 5(B) and R.C. 2945.71(D)
specifically require that differing degrees of crimes be brought together against a defendant, and
all charges tried at the common pleas level within 270 days.
{¶ 17} Discovering later that the grand jury did not indict on the felony charge, however,
does nothing to change the fact that the state was obligated to present all charges against Delong
Ross App. No. 15CA3482 6
to the grand jury. The Legislature enacted R.C. 2945.71(D) knowing the grand jury process takes
considerable time to implement.1 Citizens must be called in to appear before the presiding grand
jury common pleas judge in order to be selected, sworn in, and instructed as to the nature of the
proceedings. A grand jury hearing date must be scheduled and subpoenas issued and served.
After testimony and the production of evidence, a report is issued and indictments subsequently
served. The various steps in this process can consume considerable time even when charges are
pursued diligently. As such, Crim.R. 5(B) and R.C. 2945.71(D) interface not only to serve the
efficient administration of justice, but also to serve judicial economy.2
{¶ 18} This is not a case where the state learned that the grand jury would not indict on a
felony charge and then subsequently brought misdemeanor charges. Instead, the state pursued the
felony and misdemeanor charges together from the start, and proceeded as if the charges would
efficiently be tried together in the court of common pleas. The felony and misdemeanor charges
were always simultaneously pending until the moment the grand jury returned its indictment. At
that point, for the first time, the state was informed that only misdemeanor charges were to be
pursued. Only then did the state become aware of the need to bring Delong to trial within 90
days to abide by the speedy-trial timeframe for misdemeanors. It is uncontested that before the
indictment was pronounced, 270 days remained the controlling timeframe in order for the grand
jury process to fairly and routinely proceed.
1
Many smaller counties only have grand jury proceedings scheduled one or two days per month.
If we hold as Delong suggests, it would place some counties in the difficult position of
scrambling to seek special grand jury proceedings, which are otherwise not routine and can be
burdensome to coordinate.
2
The retroactive application of the 90-day timeframe encourages the state to seek a severance of
the charges contrary to the express requirements of Crim.R. 5(B) and would significantly congest
the dockets of municipal and area courts. In essence, it would encourage the state to act contrary
to Crim.R. 5(B) and violate the rule.
Ross App. No. 15CA3482 7
{¶ 19} Some courts have recognized that the state does not have the ability to use the
original felony timeframe when charging a felony first and then subsequently bringing
misdemeanor charges once the felony case was terminated. For example, in State v. Large, 2d
Dist. Montgomery No. 23947, 2015-Ohio-33, the court recognized that the appellant’s felony
case terminated once the grand jury returned a no true bill. The appellant was not released from
jail, however, because the state chose to bring new misdemeanor charges based on the same
conduct for which the felony charge arose. The court determined that “because the misdemeanor
charges were instituted after the felony case terminated, R.C. 2945.71(D) did not operate to
apply the 270-day speedy-trial time for the original aggravated burglary charge to the two new
misdemeanor charges. Id. at ¶ 17.
{¶ 20} Unlike Large, however, in Delong’s situation, the state combined Delong’s
misdemeanor and felony charges together from the beginning and did not bring new or different
charges once the grand jury returned the no true bill on the felony charge. Therefore, we find that
R.C. 2945.71(D) is still applicable, with the operating principle that a different set of charges
handed down by the grand jury begins the speedy-trial timeframe anew.
{¶ 21} Adhering to this interpretation of the rules and Ohio law gives fair and adequate
notice to both parties regarding what time parameters control the actual charges set forth by the
grand jury. In fact, in a dissent, Judge Hall of the Second District Court of Appeals anticipated in
Large the possibility of an occurrence similar to what occurred in the case at bar. Judge Hall
noted that if the appellant in Large had been “charged with the felony and the misdemeanor
charges at arrest, and he had remained in custody, and the felony later had been dismissed, the
time for trial of the misdemeanor charges would have been the earlier of ninety days from arrest
or thirty days from dismissal of the felony, whichever was earlier.” Id. at ¶ 27. (Emphasis sic).
Ross App. No. 15CA3482 8
{¶ 22} Judge Hall based his conclusion on a rule set forth in State v. Gasnik, 132 Ohio
App.3d 612, 725 N.E.2d 1162 (1st Dist.1998), in which the First District set forth the rule that
when an original charge is reduced to a lesser included charge that carries a shorter speedy-trial
time limit, the speedy-trial timeframe will be the earlier of either the speedy-trial timeframe for
the original charge (as applied from the date of the original charge) or the speedy-trial timeframe
for the lesser charge (as applied from the date that the original charge was reduced to the lesser
charge).
{¶ 23} There is no practical difference between when a grand jury reduces a charge or
when a grand jury dismisses a charge. When a charge is subsequently reduced by the grand jury,
the state and defendant began the case under the assumption that the felony (or higher degree
charge) would control the speedy-trial timeframe. When the degree of the highest charge is later
reduced to something lesser, the speedy-trial timeframe for that lesser charge does not
automatically rise up to subsume the fact that a higher degree charge originally designated the
timeframe to be applied. Instead, the rule is that the charging of the lesser included crime begins
anew the speedy-trial timeframe, and that new degree will control the time frame to be applied.
{¶ 24} Similarly, when misdemeanor charges are brought with a felony charge, the
parties begin the case under the assumption that the felony charge will control the speedy-trial
time frame, and that the case will go to the common pleas court according to Crim.R. 5(B).
When the grand jury decides not to include the felony charge in its indictment, the process
should be the same with the new time frame beginning anew and controlled by the highest
degree charge the grand injury did include in its indictment.
{¶ 25} Moreover, the Ohio Supreme Court specifically held that an original speedy-trial
timeframe is applied to subsequent indictments. State v. Baker, 78 Ohio St.3d 108, 676 N.E.2d
Ross App. No. 15CA3482 9
883 (1997). The Baker court addressed cases involving multiple indictments, and determined that
“subsequent charges made against an accused would be subject to the same speedy-trial
constraints as the original charges, if the additional charges arose from the same facts as the first
indictment.” Id. at 110. This rule of law encourages the state to bring all charges at the same time
that arise from the same facts, and has the practical result of requiring the state to proceed as if
all charges were brought on the same date.
{¶ 26} If this court were to adopt Delong’s arguments, it would essentially cause the state
to file felony charges in the common pleas court, while pursuing misdemeanor charges
separately in municipal or area courts to avoid the danger of having the misdemeanor charge
dismissed on speedy-trial grounds. However, and according Crim.R. 5(B), the state does not
have this option because “any misdemeanor, other than a minor misdemeanor, arising from the
same act or transaction involving a felony shall be bound over or transferred with the felony
case.” (Emphasis added.)
{¶ 27} Our determination today is consistent with the spirit of the speedy-trial rights
inherent in the federal and state constitutions, as well as Ohio’s statutory scheme, “which is
primarily intended to minimize the restrictions on freedom and the general disruption of life
caused by pending and unresolved criminal charges.” Phillips, 19 Ohio App.3d at 86, 482 N.E.2d
1337 (10th Dist.1984). From the inception of the charges against Delong, she was on notice the
state had 270 days to bring its case against her. When the grand jury did not indict on the felony,
the state then had 270 days from the date of arrest or 90 days from the date of service of the new
indictment that dismissed the felony—whichever occurred earlier. This would not have added
any additional burden or restriction of freedom on Delong, as the 90 days would expire before
the 270 days everyone had originally considered applicable. The state brought its case against
Ross App. No. 15CA3482 10
Delong within the original 270-day time frame, and within 90 days of the grand jury’s
indictment. As such, Delong’s speedy-trial rights were not violated.
V. Conclusion
{¶ 28} Having found that Delong’s speedy-trial rights were not violated, we overrule
Delong’s sole assignment of error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Ross App. No. 15CA3482 11
Hoover, J.: Dissents with Dissenting Opinion.
{¶ 29} I respectfully dissent from the principal opinion. I would find that the state
violated Delong’s right to speedy trial. Therefore, I would sustain Delong’s first assignment of
error; and I would remand this proceeding to the trial court so it may vacate Delong’s conviction.
{¶ 30} Here, both parties cited the rule in State v. Smith, 4th Dist. Athens No. 99CA31
2000 WL 41723 (Jan. 12, 2000) and both parties argued its application under the facts of this
case. Delong asserts that the rule in Smith does not apply here, because her case does not involve
a reduction of charges to a lesser degree. As such, Delong asserts that the speedy trial deadline of
90 days began to run one day after her arrest.
{¶ 31} On the other hand, the state argues that when applying the rule in Smith to the case
at bar, it had 270 days from June 28, 2014 or 90 days from September 24, 2014. Since the 90-day
deadline is the earlier of the two, the state contends (1) that the latter time limit applied and (2)
that Delong’s plea of no contest was within that speedy trial time requirement.
{¶ 32} I find that Smith is clearly distinguishable from the case at bar, however. In Smith,
the defendant was charged originally with a felony failure to comply with the order of a police
officer. Id. at *1. Defendant was also charged with several misdemeanors, including driving
under the influence, driving under suspension, speeding, and displaying fictitious tags. Id. Unlike
the case sub judice, Smith appeared in the municipal court and pled no contest to an amended
misdemeanor charge. Id. The municipal court dismissed the remaining misdemeanors upon the
state’s motion. Id. After disposition of the misdemeanors, the state then decided not to pursue the
felony failure to comply and dismissed the felony. Id. The state instead filed a misdemeanor
complaint for failure to comply. Id. Between arraignment on the misdemeanor charge and his set
Ross App. No. 15CA3482 12
trial date, Smith filed a motion to dismiss pursuant to R.C. 2945.71. Id. The trial court denied
Smith’s motion to dismiss. Id.
{¶ 33} During Smith’s appeal of the trial court’s decision, he argued that the trial court
erred because the state failed to bring him to trial within 90 days of his arrest. Id. In deciding
Smith, this court relied on the rule previous articulated in State v. Cattee, 14 Ohio App.3d 239,
470 N.E.2d 421 (4th Dist.1983). Id. at *2. Applying that rule, as stated above, this court
determined that the state complied with the speedy trial guidelines. Id. at *3. This court stated
that the state brought Smith to trial within 270 days of his felony arrest, and within 90 days of the
reduction in charges. Id.
{¶ 34} Smith’s circumstances were much different from Delong’s circumstances in that
the felony receiving stolen property charge against Delong did not result in a misdemeanor
charge. No charge arose from the receiving stolen property charge at all in the case before us.
Furthermore, in Smith, the state resolved the misdemeanor charges against Smith before pursuing
the felony charge. Id. at *1, *3. Here, the misdemeanor charges against Delong remained
pending from the date of his arrest until she entered a plea of no contest to the indicted charges.
{¶ 35} In deciding Smith, this court had relied upon Cattee. However, Cattee is also
distinguishable from the case sub judice. In Cattee, the defendant Cattee was initially charged
with felonious assault, a second degree felony. Id. at 240. The case was then bound over to the
Scioto County Common Pleas Court. Id. After being considered by the Scioto County Grand
Jury, Cattee was indicted only upon a misdemeanor assault charge. Id. Cattee then filed a motion
to dismiss claiming that his right to a speedy trial had been violated. Id. The trial court denied
Cattee’s motion to dismiss. Id.
Ross App. No. 15CA3482 13
{¶ 36} In affirming the trial court’s decision to deny Cattee’s motion to dismiss, this
court held that “where a felony complaint is filed, the accused is bound to the grand jury and an
indictment charging a misdemeanor is returned, the statutory time limitations respecting the
misdemeanor shall apply subject to the requirement that the time for trial shall not exceed the
statutory period for the trial of the felony.” (Emphasis sic.) Id. at 242. “In other words, to
compute speedy trial time we compare the deadlines of the original charge versus the reduced
charge, and then use the earlier of the two deadlines.” Smith at *2. Therefore, while a new
speedy trial time may commence when a felony charge is reduced to a misdemeanor, the state
must still bring the accused to trial within the original 270-day time limit.
{¶ 37} I agree that this reasoning applies when a felony charge is reduced to a
misdemeanor charge as in Cattee and Smith; however, in the case sub judice, the felony charge
was not reduced to a misdemeanor charge. The Ross County Grand Jury simply chose not to
indict on the felony charge of receiving stolen property. In fact, the two misdemeanors upon
which Delong was indicted were based on the same two misdemeanors that she was originally
charged with on June 28, 2014 and upon which she was arraigned twice.
{¶ 38} We must be cognizant of the premise that an accused has a valid interest in, and
an independent constitutional right to, a speedy trial. Cattee at 242 quoting State v. Bonarrigo,
62 Ohio St.2d 7, 11, 402 N.E.2d 530 (1980). “A court interpreting a statute must look to the
language of the statute to determine legislative intent.” State v. Clemons, 4th Dist. Highland No.
12CA9, 2013–Ohio–3415, ¶ 7. Courts should give effect to the words of the statute and should
not modify an unambiguous statute by deleting or inserting words; that is, we have no authority
to ignore the plain and unambiguous language of a statute under the guise of statutory
interpretation. Id. In interpreting a criminal statute, courts must construe the statute strictly
Ross App. No. 15CA3482 14
against the state and liberally in favor of the accused. Id. citing R.C. 2901.04(A); State v. Gray,
62 Ohio St.3d 514, 515, 584 N.E.2d 710 (1992). “The interpretation of a statute or ordinance is a
question of law, which we review de novo.” State v. Frey, 166 Ohio App.3d 819, 2006–Ohio–
2452, 853 N.E.2d 684, ¶ 9.
{¶ 39} In applying R.C. 2945.71, I would examine the facts of this case as follows. Here,
the felony charge of receiving stolen property was not reduced to a lesser charge. No felony or
misdemeanor charge resulted from the facts associated with the receiving stolen property charge.
Instead, Delong was indicted upon a charge of driving under OVI suspension—a misdemeanor
of the first degree. This charge was the exact same charge as the original charge. Since Delong’s
arraignment on the original charges, Delong had been under a recognizance bond for the charge
of driving under OVI suspension.
{¶ 40} As for the other misdemeanor charge of operating a motor vehicle bearing an
invalid license plate—a misdemeanor of the fourth degree—although it was not the exact same
charge as the original charge of having illegal places, it did arise from the same facts as the
original charge. I, therefore, consider that the Ohio Supreme Court has determined that, “[w]hen
new and additional charges arise from the same facts as did the original charge and the state
knew of such facts at the time of the initial indictment, the time within which trial is to begin on
the additional charge is subject to the same statutory limitations period that is applied to the
original charge.” State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989) quoting State v.
Clay, 9 Ohio App.3d 216, 218, 459 N.E.2d 609 (11th Dist.1983). Thus, according to Adams and
Clay, even if we consider the charge of operating a motor vehicle bearing an invalid license plate
as a new charge, the time within which trial is to begin on the new charge is subject to the same
statutory limitations that was applied to the original charge of having illegal plates.
Ross App. No. 15CA3482 15
{¶ 41} I am mindful that we must construe the speedy trial statutes strictly against the
state and in favor of the accused. State v. Carr, 4th Dist. Ross No. 12CA3358, 2013-Ohio-5312,
¶ 11, citing Brecksville v. Cook, 75 Ohio St.3d 53, 57, 661 N.E.2d 706 (1996). Accordingly, I
would find that, under the circumstances in this case, the speedy trial time requirement as set
forth in R.C. 2945.71(B)(2) was not enlarged because of the grand jury’s decision to indict
Delong on the misdemeanor charges only and not the felony charge. In other words, I would find
that the state did not continue to have the time period of 270 days in which to bring Delong to
trial once the felony receiving stolen property charge was no billed. Consequently, R.C.
2945.71(B)(2) applied; and Delong had to be brought to trial on the misdemeanors within 90
days after her arrest. Even counting the tolling periods, I find that more than 90 days elapsed
which violated the speedy trial statute.
{¶ 42} Thus, I would conclude that the state failed to bring Delong to trial within 90 days
from June 29, 2014, in violation of Delong’s right to speedy trial. I would sustain Delong’s
assignment of error, reverse the judgment of the trial court, and remand the matter to the trial
court in order to vacate the conviction and discharge Delong.
Ross App. No. 15CA3482 16
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs herein
taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Chillicothe
Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment and Opinion.
Hoover, J.: Dissents with dissenting opinion.
For the Court
BY:
Robert N. Piper*, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and
the time period for further appeal commences from the date of filing with the clerk.
*Judge Robert N. Piper III from the Twelfth Appellate District, sitting by assignment of the
Supreme Court of Ohio in the Fourth Appellate District.